0120071339
04-29-2009
Amy Manigo, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Amy Manigo,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120071339
Hearing No. 410-2006-00200X
Agency No. 200I-0534-2006100285
DECISION
Complainant filed an appeal from the agency's December 13, 2006 final
order concerning her equal employment opportunity (EEO) complaint alleging
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. For the
following reasons, the Commission AFFIRMS the agency's final order.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked as
a Registered Nurse at the agency's Ralph Johnson Veterans Administration
Medical Center facility in Charleston, South Carolina .
Complainant filed an EEO complaint, dated November 28, 2005, alleging that
she was discriminated against on the bases of race (African-American)
and in reprisal for prior protected EEO activity under Title VII of the
Civil Rights Act of 1964 when:
(1) On August 16, 2005, the Medical Center Director (M1) appointed
an Administrative Board of Investigation (ABI) to review charges
regarding the allegation that complainant was creating a hostile work
environment for her staff on the Surgical Intensive Care Unit (SICU)
where complainant is the Charge Nurse.
(2) On November 29, 2005, complainant was informed by the Associate
Nurse Executive (N1) that as result of the ABI, complainant's permanent
assignment as Charge Nurse was discontinued effective that day.
(3) On November 29, 2005, complainant was informed by N1, that as
result of the ABI, complainant was placed on a performance review plan
for the remaining of her rating period.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of her right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested
a hearing and the AJ held a hearing on October 18, 2006, and issued a
decision on October 19, 2006.
In his decision, the AJ found that complainant failed to carry her burden
to prove by a preponderance of the evidence that she was subjected to
discrimination. Specifically, he noted that complainant established
a prima facie case of race and reprisal discrimination as alleged.
The AJ found that at least one of the two officials convening the ABI
in August 2005, was aware of complainant's race and also aware of her
prior expressed opposition to agency conduct that she believed to be
discriminatory.1 The AJ found that the agency successfully rebutted
complainant's prima facie case by providing legitimate, non-discriminatory
reasons for its actions. In particular, agency officials acknowledged
that they had convened ABI investigations after allegations of patient
abuse or other offenses, whether the charges involved African-American
nurses or Caucasian nurses. The AJ noted that complainant was not
disciplined after the allegations were investigated. Further, M1 did
not reassign complainant, which the AJ found tended to show that M1's
actions were not motivated by reprisal. The AJ found that complainant
was not subjected to harassment because of her race or reprisal.
The agency subsequently issued a final order adopting the AJ's finding
that complainant failed to prove that she was subjected to race or
reprisal discrimination as alleged.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An AJ's credibility determination based on the demeanor of a witness or
on the tone of voice of a witness will be accepted unless documents or
other objective evidence so contradicts the testimony or the testimony so
lacks in credibility that a reasonable fact finder would not credit it.
See EEOC Management Directive 110, Chapter 9, � VI.B. (November 9, 1999).
To prevail in a disparate treatment claim such as this, complainant must
satisfy the three-part evidentiary scheme fashioned by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Complainant
must initially establish a prima facie case by demonstrating that he or
she was subjected to an adverse employment action under circumstances
that would support an inference of discrimination. Furnco Construction
Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will
vary depending on the facts of the particular case. McDonnell Douglas,
411 U.S. at 804 n. 14. The burden then shifts to the agency to articulate
a legitimate, nondiscriminatory reason for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately
prevail, complainant must prove, by a preponderance of the evidence, that
the agency's explanation is pretextual. Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993).
Complainant can establish a prima facie case of reprisal discrimination
by presenting facts that, if unexplained, reasonably give rise to
an inference of discrimination. Shapiro v. Social Security Admin.,
EEOC Request No. 05960403 (Dec. 6, 1996) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)). Specifically, in a reprisal
claim, and in accordance with the burdens set forth in McDonnell
Douglas, Hochstadt v. Worcester Foundation for Experimental Biology,
425 F. Supp. 318, 324 (D. Mass.), aff'd, 545 F.2d 222 (1st Cir. 1976),
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), a complainant may establish a prima facie case of
reprisal by showing that: (1) he or she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
he or she was subjected to adverse treatment by the agency; and (4) a
nexus exists between the protected activity and the adverse treatment.
Whitmire v. Department of the Air Force, EEOC Appeal No. 01A00340
(September 25, 2000).
We find that substantial evidence supports the AJ's decision finding
no discrimination. Specifically, we note that agency officials,
including M1, N1 and other witnesses described the manner in which
review of patient and staff complaints were conducted by the agency's
ABI process, and find that the AJ properly concluded that complainant
failed to show that an ABI was convened because of complainant's race
or in reprisal for complainant's prior protected activity. Rather, the
evidence indicated that the ABI was convened after an anonymous letter
accused complainant of being a workplace "bully" and of creating a work
environment that the letter's author considered "hostile." We find the
record supports the AJ's finding that the agency's actions of November 29,
2005 (removing complainant's charge nurse duties; placing complainant on
a plan to improve her performance), were not motivated by complainant's
race or reprisal, but by the findings and recommendations of the ABI.
We observe, as did the AJ, that complainant acknowledged that she was loud
and assertive, as well as perceived by others as intimidating. We find
that complainant did not show that the agency's decision was motivated
by anything other than its receipt of the anonymous letter describing
behavior, including patient abuse, that M1 believed warranted further
investigation and administrative review for possible corrective action.
We AFFIRM the agency's final decision finding no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
April 29, 2009
__________________
Date
1 Complainant submitted an anonymous letter to agency management
complaining of workplace race discrimination in April 2005. However,
during the investigation of the matters described in the letter,
complainant informed the investigating board (ABI) that she had written
the letter.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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